"Sufficiency" for living organism inventions under the Patents Act 1990 (Cth)

The Patents Act 1990 (Cth) requires a complete specification to describe the invention. This description is central to the policy objective that the statutory rights under the Patents Act 1990 (Cth) are exchanged for disclosure of the invention, including how to make the invention. In addressing these requirements for "micro-organisms", the Patents Act 1990 (Cth) adopted the Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure (Budapest Treaty) recognising that the "invented" organism itself may be necessary to make and use the invention, and that a formal description may be of limited value or practicability. The scope of the Budapest Treaty does not, however, extend to a significant class of living organisms outside the class defined by the term "micro-organism". This article reviews the application of the description requirements for living organism inventions under the Patents Act 1990 (Cth) and concludes that some form of public availability or deposit requirements are necessary for invented living organisms that are outside the scope of the Budapest Treaty's "micro-organisms".